United States Court of International Trade

Slip Op. 20-106

Before the Court in Vietnam Finewood Co. et. al. v. United States, Slip Op. 20-106, Court No. 19-00218 (July 31, 2020) was the government’s motion to dismiss the case for lack of jurisdiction. Plaintiffs import hardwood plywood, which is subject to antidumping duty and countervailing duty orders when from China. In July 2018, Customs received a complaint that plaintiffs were transshipping Chinese origin plywood through Vietnam to avoid the orders. As a result, Customs opened an Enforce and Protect Act (“EAPA”) investigation into plaintiffs, which Customs had 360 days to complete or until September 16, 2019. In August of 2019, Customs emailed Commerce a formal scope referral. In December 2019, plaintiffs commenced this action under the Courts residual Section 1581(i) jurisdiction, challenging Customs scope request, Commerce’s delay in processing the request and that Customs violated the 360 day limit to complete an EAPA investigation. For the following reasons the Court dismissed the complaint.

“Section 1581(i) … may not be invoked when jurisdiction under another subsection of 1581 is or could have been available.” Id. at 7. “Instead, the Court must look to the true nature of the action . . . in determining jurisdiction of the appeal.” Id. at 16. The Court noted that the “true nature of Plaintiffs’ action is a challenge to CBP’s alleged failure to complete its EAPA investigation within the statutory period and to CBP’s allegedly deficient and dilatory referral of the matter to Commerce for a scope determination.” Id. The Court found that the scope referral to Commerce stayed the case at an administrative level, and that plaintiffs “may seek judicial review of those determinations pursuant to 19 U.S.C. § 1517(g)(1) and 28 U.S.C. § 1581(c)” when they are finalized. Id. at 18. As such, the Court lacked jurisdiction pursuant to 28 U.S.C. § 1581(i) and the case was dismissed.